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Schmidt v. City of Bella Villa: 1983 | EVIDENCE | 4TH AMENDMENT - no 4th Amendment violation, no strip search; no error excluding proposed expert or photo without foundation

United States Court of Appeals
No. 07-3053
Jami Neco Schmidt, *
Plaintiff - Appellant, *
v. *
Christine Magyari, *
* Appeal from the United States
Plaintiff, * District Court for the Eastern
* District of Missouri.
v. **
City of Bella Villa; Edward Locke, Jr., *
Chief of Police, in his individual *
capacity, *
Defendants - Appellees. *
Submitted: April 14, 2008
Filed: March 2, 2009
Before LOKEN, Chief Judge, JOHN R. GIBSON, and MELLOY, Circuit Judges.
JOHN R. GIBSON, Circuit Judge.
Jami Neco Schmidt filed this claim for damages under 42 U.S.C. 1983 and
Missouris strip search law, Mo. Rev. Stat. 544.193. She brought claims against the
City of Bella Villa, Missouri, and Chief of Police Edward Locke, Jr. in connection
1The Honorable Stephen N. Limbaugh, Sr., United States District Judge for the
Eastern District of Missouri, now retired.
with the alleged post-arrest photographing of her tattoo. She appeals from the district
courts1 entry of summary judgment on each of her claims and from two evidentiary
decisions. Having jurisdiction under 28 U.S.C. 1291, we affirm.
On June 3, 2005, Jami Neco Schmidt, a 20-year-old woman, was riding in a
vehicle driven by Sarah McVey. Police Chief Edward Locke, Jr. stopped the vehicle
after McVey committed several moving violations. During the stop, Locke smelled
alcohol and observed at least two open cans of beer in the car. Locke asked the
passengers, including Schmidt, for identification.
Schmidt gave a false name, Samantha Smith, and a false date of birth and
social security number. When Locke attempted to run the passengers identifying
information through his computer, he learned that the information Schmidt had given
was false. Schmidt also failed field sobriety tests. Locke arrested Schmidt for making
a false declaration and for being a minor in possession of alcohol. Locke issued a
citation to McVey, the driver, but did not arrest her or any of the other passengers in
the car. Locke then transported Schmidt to the Bella Villa police station. Schmidt
does not contest the propriety of her arrest.
At the police station, Locke interviewed Schmidt regarding her identity. This
process included the completion of a booking sheet with information about the arrest
and Schmidts identification. The booking sheet included a section for listing
scars/marks/tattoos/deformities. In response to Lockes inquiry about whether she
had any scars, marks, tattoos or deformities, Schmidt indicated that she had a butterfly
tattoo. The tattoo is approximately two inches long and is located approximately two
inches from Schmidts hipbone. The tattoo was hidden by her clothing at the time of
her booking.
The following facts are in dispute, but for the purposes of reviewing a motion
for summary judgment, we will recite the facts in the manner most favorable to
Schmidt, the nonmoving party. OBrien v. Dept of Agriculture, 532 F.3d 805, 808
(8th Cir. 2008). After Schmidt described her tattoo to Locke, he requested that she
take a picture of the tattoo. When she asked why he needed a picture, he told her that
it was for identification purposes. Locke provided Schmidt with a Polaroid camera
and asked her to go into the bathroom to take a picture of the tattoo. When she
returned with a photograph of her tattoo, Locke examined the picture and stated that
it was not good enough. Locke indicated that he would need to take a better picture.
Pursuant to Lockes request, Schmidt unbuttoned her jeans partway and folded them
inwards to permit him to take a photograph. He again rejected this photograph as
being incomplete or otherwise unacceptable. To permit Locke to take an acceptable
photograph, Schmidt further unbuttoned her jeans and folded them inwards again.
Locke took a second photograph, which he apparently found to be acceptable.
Schmidt was later released on her own recognizance.
In her brief to this court, Schmidt alleges that Locke used harassing and/or
threatening language toward her during her time in custody. However, these
allegations were not before the district court in response to the motion for summary
judgment. See Holland v. Sams Club, 487 F.3d 641, 644 (8th Cir. 2007).
Schmidt alleged multiple claims based on the incident of photographing her
tattoo. She brought claims under 42 U.S.C. 1983 that Locke violated her Fourth and
Fourteenth Amendment rights. She additionally alleges four theories of municipal
liability. Finally, she brought tort claims against the City and Locke under Missouris
strip search law, Mo. Rev. Stat. 544.193.
2Schmidt opposed summary judgment on the following claims:
Count 1: Section 1983 Claim for violation of the Fourth and Fourteenth
Amendments against Locke;
Count 2: Section 1983 claim for violation of the Fourth and Fourteenth
Amendments against City of Bella Villa on the basis that Locke is a
policy maker or, alternatively, on the basis of Citys failure to train,
supervise and control Locke;
Count 4: State tort claim for violation of Mo. Rev. Stat. 544.193
against Locke only.
3 After oral argument, Schmidt submitted a motion to supplement the record
with deposition testimony confirming that the Polaroid camera use to take the
photographs exists. Because City and Locke admit that photographs were taken with
the Polaroid camera, we deny the motion because the relief it seeks is unnecessary
given our disposition.
4The photograph submitted by Schmidt was taken in or around January 2007
for the purpose of this lawsuit.
After discovery, the district court granted a motion to strike Schmidts expert
witness, St. Louis Police Officer, Lieutenant Anthony Russo. After her deposition,
Schmidt also filed a photographic exhibit allegedly depicting her tattoo. The district
court also granted a motion to strike the exhibit. Finally, City and Locke filed a
motion for summary judgment on all of Schmidts claims. In response, Schmidt
conceded several, and the court granted summary judgment on the remaining claims.2
Schmidt appeals these rulings, which we affirm.3
II. Evidentiary Issues.
A. Exclusion of Photographic Exhibit.
Schmidt appeals from the district courts exclusion of a photographic exhibit
she submitted to show the location of her tattoo and the position of her clothing when
Chief Locke took his photos.4 City and Locke urge us to uphold the district courts
order striking the exhibit on the basis that there was insufficient foundation to
establish the authenticity of the photograph. See Fed.R.Evid. 901. We review the
district courts order for abuse of discretion and accord the district courts evidentiary
decisions substantial deference. Watson v. ONeill, 365 F.3d 609, 615 (8th Cir.
2004). [W]e may not reverse unless the district court erred and the error affected the
substantial rights of the appellant. Green v. City of St. Louis, 507 F.3d 662, 669 (8th
Cir. 2007) (citing Archer Daniels Midland Co. v. Aon Risk Servs., Inc., 356 F.3d 850,
857 (8th Cir. 2004)).
In order to be admissible, a photograph must be shown to be an accurate
representation of the thing depicted as it appeared at the relevant time. See United
States v. Stierwalt, 16 F.3d 282, 286 (8th Cir. 1994). Schmidt contends that the
photographic exhibit accurately depicts her tattoo and, thus, should be admitted.
However, Schmidts argument shows that her purpose is not to show the condition and
location of the tattoo on the date it was photographed in her attorneys office. Rather,
Schmidt submits the exhibit for the purpose of showing not only the tattoo, but the
location of her clothing and her state of undress in the station photographs. We
evaluate the authenticity of the exhibit in that context.
The district court found that the legal secretary to Schmidts counsel, who
provided the affidavit accompanying the exhibit, had no personal knowledge of
whether the tattoo depicted in the photograph was in the same location and condition
on June 3, 2005, as depicted in the station photographs. Further, the district court was
troubled by the discrepancy between allegations in Schmidts complaint and her
deposition testimony that raise questions about whether the photographic exhibit is an
accurate representation of the location of Schmidts clothing at the time of her arrest.
In the exhibit, Schmidts jeans are unzipped and folded outward to display her tattoo.
As the court noted, Schmidt alleged in her complaint that she unbuttoned her jeans
and cropped them inward to permit Locke to take the photographs. Thus, the jeans
worn in the exhibit are not the same jeans worn by Schmidt during the photographing,
nor are they arranged in the same manner. We find no abuse of discretion in the
district courts decision to strike the photographic exhibit for lack of foundation.
Even if we were to determine that the photographic exhibit was admissible for
the limited purpose of showing the location and condition of Schmidts tattoo, we
could not conclude that the error affected Schmidts substantial rights. Although there
is a semantic disagreement regarding what to call the location of the tattoo, it is
undisputed that the tattoo is located two inches from Schmidts hipbone on her lower
abdomen. Schmidt admits as much in her brief to this court: Appellant asserts that
even without the photo[,] her testimony in her deposition was sufficient to establish
the location of the tattoo. We affirm the district courts decision to exclude the
photographic evidence.
B. Exclusion of Expert Testimony.
Schmidt appeals the district courts order striking the designation of St. Louis
Police Lieutenant Anthony Russo as an expert witness. Schmidt argues that Russos
testimony on police practicesincluding decisions to arrest, decisions to search for
arrest warrants, evidence collection procedures, strip-search procedures, and general
police policiesis admissible under Federal Rule of Evidence 702. Schmidt also
contends that the district court improperly excluded Russos testimony because he is
not an academic.
The district court excluded Russos testimony after concluding that it was not
sufficiently relevant or reliable under the test articulated in Daubert v. Merrill Dow
Pharmaceutical, Inc., 509 U.S. 579 (1993), which enunciates the role of the trial judge
under Rule 702. Rule 702, which governs the introduction of expert testimony, states:
If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training,
or education, may testify thereto in the form of an opinion or otherwise,
if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to the facts of the
The trial judge is first charged with determining whether the witness is qualified to
offer expert testimony. Daubert, 509 U.S. at 589; Fed.R.Evid. 702. Additionally,
Daubert charges the district court as follows: [U]nder the Rules the trial judge must
ensure that any and all scientific testimony or evidence admitted is not only relevant,
but reliable. 509 U.S. at 589; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137,
142 (1999) (non-scientific expert testimony). We review the district courts decision
to exclude expert testimony under an abuse of discretion standard. See Gen. Elec. Co.
v. Joiner, 522 U.S. 136, 143 (1997). We will not reverse the district court unless the
district court abused its discretion and its ruling had a substantial influence on the
outcome. See Green v. City of St. Louis, 507 F.3d 662, 669 (8th Cir. 2007).
The district court issued a thorough order regarding Russo's expert testimony.
First, the district court found that a number of the opinions offered by Russo were
improper legal conclusions regarding the reasonableness of conduct in light of Fourth
Amendment standards. Schmidt concedes that some of the conclusions drawn in the
expert report were improper legal conclusions, but asks that Russo be permitted to
testify regarding police procedures. Schmidt, however, does not specify which of
Russo's opinions are proper and which are not. The district court found that Russo's
expert opinions regarding the reasonableness of the evidence collection and strip
search procedures were impermissible legal conclusions. Russo's report consisted of
his opinions regarding the overall reasonableness of the procedures used and, as such,
were not fact-based opinions. See Peterson v. City of Plymouth, 60 F.3d 469, 475
(8th Cir. 1995) (expert testimony on reasonableness of police behavior in light of
Fourth Amendment standards is statement of legal conclusions and not admissible).
In addition, Russo's report is devoid of any standards and explanations that would
assist the trier of fact in contextualizing his opinions. See United States v. Ellsworth,
738 F.2d 333, 336 (8th Cir. 1984) (experts conclusory statement properly excluded
for lack of foundation). Accordingly, we cannot say that the district court abused its
discretion by refusing to admit Russo's testimony regarding the reasonableness of
police procedures.
The district court also found that the proffered expert testimony regarding
Lockes decision to arrest Schmidt, his decision not to arrest McVey or any of the
other passengers, and the lack of printed policy manuals for the Bella Villa Police
Department was not relevant to any issue in the case. Schmidt argues that the
testimony regarding the decisions to arrest are relevant to the totality of the
circumstances, which are used to evaluate her Fourth Amendment 1983 claim. See
Tennessee v. Garner, 471 U.S. 1, 8-9 (1985). Garner, on which Schmidt relies, is
inapposite; it examines the totality of the circumstances as they existed at the time of
a search to determine whether the search was reasonable. Id. Schmidt seeks instead
to have admitted an opinion as to circumstances that existed at the time of her arrest,
which she does not challenge and which are not relevant to whether the subsequent
search was reasonable. Whether Schmidt was arrested outside the Bella Villa city
limits or whether Locke should have reasonably believed McVey to be intoxicated is
not relevant to Schmidts claim: that photographing her tattoo violated her rights.
Thus, it was not an abuse of discretion to exclude this testimony.
We do conclude that the district court should not have excluded the testimony
regarding the existence of policy manuals on the basis of relevance because it is
relevant to the issue of municipal liability. This error does not have a substantial
influence on the outcome of this case, though, because we do not reach the question
of municipal liability. See infra. Thus, we affirm the district court.
Finally, the district court found that Russo was not qualified to offer testimony
regarding strip-search procedures, Lockes motivations, or the psychological impact
of custody on arrestees. Schmidt argues that the district court improperly assumed
that Russo was not qualified because he was not an academic or administrator. Police
officers may be qualified by their experience to testify as expert witnesses. See
United States v. Boykin, 986 F.2d 270, 275 (8th Cir. 1993). However, for an expert
witness to be qualified based on experience, that experience must bear a close
relationship to the experts opinion. Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47
F.3d 277, 283-84 (8th Cir. 1995). The district court concluded that there was not a
close fit between Russo's experiences and the subjects on which his testimony was
offered. Russo has experience working as a traffic patrolman, a watch commander,
and in organizing security operations for public events. As noted by the district court,
there was no evidence that Russo had any experience with civil rights violations or
with strip searches. Additionally, there was no evidence that Russo had any work
experience pertinent to psychology. The district court's finding was not an abuse of
The district court fully considered Russos expert testimony under the rubric of
Rule 702 and Daubert. The court did not abuse its discretion by striking the expert
designation of Russo.
III. Section 1983 Claims.
Schmidt appeals the entry of summary judgment on her 1983 claims in favor
of Locke and the City of Bella Villa. We review a grant of summary judgment de
novo, viewing the facts in the light most favorable to the nonmoving party. Green v.
City of St. Louis, 507 F.3d 662, 666 (8th Cir. 2007). Summary judgment is only
appropriate if the record shows that there [is] no genuine issue of material fact and
that the defendants [are] entitled to judgment as a matter of law. Id. However,
summary judgment will not be reversed on the basis of speculation, conjecture, or
fantasy. Putman v. Unity Health Sys., Inc., 348 F.3d 732, 733-34 (8th Cir. 2003).
The essential elements of a 1983 claim are (1) that the defendant(s) acted
under color of state law, and (2) that the alleged wrongful conduct deprived the
plaintiff of a constitutionally protected federal right. DuBose v. Kelly, 187 F.3d 999,
1002 (8th Cir. 1999). The parties focus primarily on the second element of the claim.
We assume that there is at least a genuine issue of material fact regarding the first
element, that Locke acted under color of state law. See Haberthur v. City of Raymore,
119 F.3d 720, 722, 724 (8th Cir. 1997) (finding that police officer acted under color
of state law when on duty and in uniform during the incidents, carrying a gun, and
driving a police vehicle). To satisfy the second element, Schmidt advances two
theories of constitutional violation: a Fourth Amendment search and seizure violation
and a Fourteenth Amendment substantive due process violation.
A. Fourth Amendment Search and Seizure.
Schmidt first argues that photographing her tattoo was equivalent to a strip
search and was thus an unreasonable search because Locke lacked reasonable
suspicion that she possessed a concealed weapon or contraband. Schmidt relies on
several Second Circuit cases that establish a per se requirement of individualized
suspicion to justify a strip search of a misdemeanor arrestee. See Hartline v. Gallo,
546 F.3d 95, 100 (2d Cir. 2008); Weber v. Dell, 804 F.2d 796 (2d Cir. 1986). Those
searches, however, were much more intrusive than the search here. See Hartline, 546
F.3d at 98 (Donovan required Hartline first to remove all of her lower garments and
bend over while Donovan made a visual inspection of her orifices, and then to remove
her upper garments and lift her bra.); Weber, 804 F.2d at 799 (. . . Mrs. Weber was
required to remove all her clothing and to expose her body cavities for visual
inspection.). As we explained in Smook v. Minnehaha Co., 457 F.3d 806, 812 (8th
Cir. 2006), cert. denied 549 U.S. 1317 (2007), strip searches requiring a person to
disrobe completely have a


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